your account has been suspended

You have exceeded the maximum number of login attempts for this email address and your account has been locked. An email has been sent to member of Browne Jacobson's web team and some one will be contacting you over the next two working days with details of how to change your password.

remove content?

Are you sure you want to remove this item from you pinned content?

22 January 2004

The issues

Vibration white finger – VWF – limitation.

The facts

The Claimant was employed as an assembly fitter making forklift trucks, firstly between 1978 and 1980 and then between January 1987 until January 1990. Over that period, he used various vibrating tools. He was absent for some months with sciatica and on return worked for 6 weeks in a job barely requiring him to use any vibration tools at all. Thereafter, he was employed in quality control until he left the Company in 1995 and during that period did not work with vibrating tools at all. He would normally work an 8-hour day on a 5-day week with short 10-minute breaks in the morning and afternoon and half an hour for lunch. There was a dispute between the parties as to the degree to which the Claimant was exposed to the use of vibrating tools.

The decision

1. Did the Claimant contract VWF? The Claimant alleged he had developed VWF and manifested many of the symptoms, such as blanching of the fingers, stiffness, tingling and some numbness. The Defendant denied that the Claimant had contracted the condition at all and put the Claimant to proof that he had the symptoms he claimed. There was argument that his exposure was very limited and that he had never complained to his Doctor who he visited regularly over the years about the symptoms he alleged he had. Nor had he mentioned it to his Line Manager. The submission that the Claimant was deliberately and brazenly lying, was dismissed. However, the matters that the Defendant had raised suggested that the Claimant did not have a very serious version of the condition.

2. Limitation issue. The Claimant issued his claim on 15th February 2002. He had said that he had been aware of VWF as a condition in about 1995 since he lived in a mining community. He did not think he suffered from the condition until he was informed by his Consultant in January 2002. However, in 1998 he had gone for an interview with a firm of Solicitors who had advertised speciality in VWF claims. He had approached them with regard to his previous employment with the National Coal Board between 1964 and 1968. He had been told that any period before 1975 would not be relevant. He had worked again later for the NCB for some 9 months and commented to the person who had seen him at the Solicitors that that 9 months would not seem to be enough to maintain a claim against the NCB. She agreed. He said that he did not link his condition with the work for the Defendant Company and he thought that a claim could not be brought against them. It was only when he realised that a colleague had successfully brought such a claim that he realised he might have a case.

3. The question was whether the Claimant had brought the action 3 years from the date of knowledge. It was clear that the Claimant thought that the condition was sufficiently serious to justify making a claim and that the condition had not got worse since 1992.

4. The remaining question was whether or not the Claimant was able to attribute the condition to a Defendant (following Spargo -v- North East Essex Health Authority) was not whether the reasonable layman would have appreciated the condition was capable of being attributed to the relevant actual admission, but rather whether the Claimant subjectively knew that it was.

5. This Claimant did not in fact appreciate that his condition was capable of being attributed to the working conditions of the Defendant he was then employed by. Had he recognised this, he would most likely have followed up the matter when he had the interview with the Solicitors in 1998.

6. Was there a breach of duty? Although the Claimant’s exposure to vibrating tools was limited, nonetheless the possibility of the risk of contracting VWF was present and therefore the employer could not say that he did not have obligations. However, the claim failed because the Claimant had not satisfied the Judge that any breach of duty by the Defendants would have prevented his condition arising. Failure to measure the level of vibrations or give warnings, did not cause or contribute to the Claimant’s condition. If he had been warned, he would not have done anything differently as the risks to him were very limited. There was no evidence to suggest that the risk vibration could have been minimised. If rubber handles had been used, there was some evidence that they may even have exacerbated the vibrations. Similarly, in the expert evidence there was a suggestion that the use of gloves did not assist in reducing vibration and indeed might make matters worse. The Defendants had no reason to anticipate that the Claimant would be particularly vulnerable to the condition and they had no reason to suppose that the tools were creating any unacceptable or unusual risks. There was no evidence that anyone had expressed concerns about the tools. Measuring the level of vibration would have had limited value, since there is no agreed acceptable level of exposure.

Claim dismissed.

focus on...

Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).

Companies should undertake a comprehensive review and audit to identify those products and legacy contracts that are LIBOR-linked and carry out an in-depth risk assessment of discontinuation. Where possible, companies should look at appointing an individual to oversee the programme.

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

follow us...

Some of the content you are trying to view requires you to have JavaScript enabled on your browser. If you are unable to activate JavaScript and need further assistance please contact our online team on webmaster@brownejacobson.com or 0115 976 6201 who will be happy to help you.